State Jurisdiction

Held, continued. On criminal jurisdiction the territorial character of criminal law is not an absolute principle of international law and does not coincide with territorial sovereignty, since most systems extend to offences committed abroad. The freedom of the seas allows a State to assimilate a ship flying its flag to its own territory for penal purposes, but as regards collisions this gives no more extended right amounting to exclusive jurisdiction. Since the effects were felt on board the Turkish vessel, the elements of the offence were inseparable and the jurisdictions were concurrent.

Why it matters. Two things, and they pull in different directions. It is the source of the presumption of freedom: a State need not find permission, only an absence of prohibition. And it is the origin of the objective territorial principle, that a State may prosecute where the effects of an act are felt in its territory.

One caution, and it is important. The Lotus rule about collisions at sea was reversed by treaty. Article 97 of the Convention on the Law of the Sea provides that in the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. So Turkey could not do today what the Court held it entitled to do in 1927. A candidate who states Lotus without that qualification has given a wrong answer to a modern problem.

The five bases

The territorial principle

The primary basis. A State has jurisdiction over everything that happens in its territory, whoever does it.

It has two forms, and the distinction is examinable.

Subjective territoriality: jurisdiction where the act began in the territory.

Objective territoriality: jurisdiction where the act was completed, or its effects were felt, in the territory. Lotus is the classic instance, the effects being felt on board the Turkish vessel, which was assimilated to Turkish territory.

A more aggressive version, the effects doctrine, asserts jurisdiction over conduct wholly abroad that produces substantial effects in the territory, and is used chiefly in competition and securities law. It is contested, because on a wide reading it lets a State regulate the world.

The nationality, or active personality, principle

A State may prescribe for its own nationals wherever they are. Every State does this to some extent, and civil law systems do it broadly.

In India the provision is section 1(5) of the Bharatiya Nyaya Sanhita 2023, which replaced the Indian Penal Code. It applies the Sanhita to any offence committed by (a) any citizen of India in any place without and beyond India, (b) any person on any ship or aircraft registered in India wherever it may be, and (c) any person in any place without and beyond India committing an offence targeting a computer resource located in India. Clause (a) is the nationality principle, clause (b) is the flag and registration rule, and clause (c) is objective territoriality written into a modern statute for the network age. The Explanation adds that offence includes every act committed outside India which, if committed in India, would be punishable under the Sanhita, and the illustration is a citizen who commits murder abroad and may be tried in any place in India where he is found.

Article 245(2) of the Constitution removes the possible objection: no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

The protective principle

A State may prescribe for acts done abroad by foreigners which threaten its security or its essential governmental functions: counterfeiting its currency, forging its passports, espionage, plotting against its government.

Its justification is necessity: the acts are often lawful where done, and no other State has an interest in punishing them. Its danger is elasticity, since "security" can be stretched to cover political opposition abroad.

The passive personality principle

A State may prescribe for acts done abroad by foreigners against its nationals.

It is the most contested basis. It was resisted for most of the twentieth century, because it exposes a traveller to the law of every country whose nationals he might meet. It has gained ground in one area, terrorism and offences against internationally protected persons, where several conventions require or permit it.

The universality principle

Some offences are so grave, or so hostile to all States, that any State may try them regardless of where they were done, by whom, or against whom.

Piracy is the original and clearest case. Article 105 of the Convention on the Law of the Sea provides that on the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft and arrest the persons and seize the property on board, and that the courts of the State which carried out the seizure may decide upon the penalties to be imposed. That is universal jurisdiction stated in a treaty, and it is worked in [The High Seas].

Modern candidates for universality include war crimes, crimes against humanity, genocide, torture and slavery. Several conventions use the aut dedere aut judicare formula, extradite or prosecute, which produces something close to universality among the parties without asserting it against the world.

The floating island theory

A theory MU asks for by name, and the answer is that it is a discarded explanation, not a rule.

What it said. A ship on the high seas is a floating portion of the territory of the State whose flag she flies, so that acts done on board are done within that State's territory and the territorial principle explains the flag State's jurisdiction over them. The same reasoning was extended to aircraft, and sometimes to embassy premises, which is why the phrase turns up in three different places in a textbook.

Why it was abandoned. It proves too much and explains too little. If a ship were literally territory, then a foreign ship in a port would be a piece of foreign territory inside the coastal State, which no State accepts; the coastal State's jurisdiction over a visiting ship would be inexplicable; and a collision on the high seas between ships of two flags would be an event occurring in two territories at once.

What replaced it. The flag State principle, which is a rule about registration and not about territory. Article 92 of the Convention on the Law of the Sea provides that ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for, shall be subject to its exclusive jurisdiction on the high seas, and article 91 requires a genuine link, as [The High Seas] sets out. Nationality of aircraft works the same way under article 17 of the Chicago Convention in [International Air Law], and so does the position of a space object under article VIII of the Outer Space Treaty in [International Space Law].

The Lotus makes the point. The Permanent Court accepted that what occurs on board a vessel on the high seas is assimilated to the territory of the flag State, and it did not stop there: it held that Turkey could exercise jurisdiction because the effects of the act were felt on board the Turkish vessel, so that both flag States had a claim. A pure floating island theory would have given the French flag State an exclusive answer, which is exactly what the Court refused. Article 97 of the Convention on the Law of the Sea has since reversed the result for collision cases, as [The High Seas] explains, without restoring the theory.

Embassies are the commonest error. Embassy premises are not the territory of the sending State. They are inviolable under the Vienna Convention on Diplomatic Relations, which is a rule about entry and protection and not about title, and [Immunity from Jurisdiction] works it. A child born in an embassy is born in the receiving State.

A worked example

Mr Q, a national of State R, is in State S. He sends a computer virus that disables a hospital in State T, killing a patient who is a national of State U. He also forges State V's currency and, on the voyage home, seizes a yacht on the high seas.

State S, where he acted: subjective territoriality. The act began there.

State T, where the harm landed: objective territoriality, and on a wider view the effects doctrine.

State R, his own State: nationality, or active personality.

State U, the victim's State: passive personality, the contested basis, likelier to be accepted here because the offence is grave.

State V, whose currency he forged: the protective principle, which exists for exactly this.

Every State, for the seizure of the yacht: universality, under article 105 of the Convention on the Law of the Sea, since piracy on the high seas may be tried by any State that seizes.

Now the question that decides the case. Six States may have prescriptive jurisdiction and none of that gets anyone arrested. Enforcement is strictly territorial, so whichever State wants him must either find him in its own territory or ask State S to hand him over, which is [Extradition]. That is why an answer that lists the five bases and stops has answered half the question.

Distinctions table

What it does NOT mean

Lotus does not mean a State may do as it likes. The presumption of freedom applies to prescriptive jurisdiction. Exercising sovereign powers in another State's territory needs a permissive rule, and the Court said so in the same passage.

Lotus is not good law on collisions. Article 97 of the Convention on the Law of the Sea confines penal proceedings after a collision to the flag State or the State of the accused's nationality.

Having jurisdiction is not being allowed to exercise it. Immunity may prevent it, which is [Immunity from Jurisdiction].

Concurrent jurisdiction is normal. Several States commonly have jurisdiction over the same facts, and international law provides no general rule of priority; the question is settled by extradition practice and by comity.

Limits and criticism

The Lotus presumption is out of step with the modern subject. A rule that a State may act unless prohibited was a natural statement of a system built on sovereignty in 1927. In a system with peremptory norms, community obligations and dense treaty regulation, later courts have been noticeably reluctant to restate it.

The effects doctrine invites conflict. If every State may regulate conduct abroad that affects it, businesses face inconsistent commands from several States at once, and there is no rule of priority to resolve them.

Universal jurisdiction is asserted more often than exercised. Prosecutions are rare, evidence is abroad, and the accused is usually not present. The practical instrument is the extradite-or-prosecute clause rather than a general universal jurisdiction.

Quick revision

Three kinds: prescriptive, adjudicative, enforcement. Prescriptive and adjudicative may reach abroad; enforcement is strictly territorial.

S.S. Lotus, PCIJ Series A No. 10 (1927): a State need not find a permissive rule to legislate for acts abroad, only the absence of a prohibition; the territorial character of criminal law is not absolute; effects felt on board the Turkish vessel gave concurrent jurisdiction. Reversed on collisions by UNCLOS article 97, which confines proceedings to the flag State or the State of the accused's nationality.

Five bases: territorial (subjective, where the act began; objective, where the effects were felt), nationality or active personality, protective, passive personality, universality.

India: section 1(5) of the Bharatiya Nyaya Sanhita 2023 applies the Sanhita to offences by (a) a citizen of India abroad, (b) any person on a ship or aircraft registered in India, and (c) any person abroad targeting a computer resource located in India. Article 245(2): no law of Parliament is invalid merely because it has extra-territorial operation.

Piracy: UNCLOS article 105, every State may seize a pirate ship on the high seas and its own courts may decide the penalties.

Aut dedere aut judicare: extradite or prosecute.

Test yourself

1. Distinguish prescriptive, adjudicative and enforcement jurisdiction, and say which is territorial.

Prescriptive jurisdiction is the power to make law applicable to persons, property or conduct; adjudicative jurisdiction is the power of courts to try a case; enforcement jurisdiction is the power to compel by arrest, seizure or execution. Prescriptive and adjudicative jurisdiction may extend beyond the territory on any of the recognised bases. Enforcement jurisdiction is strictly territorial: a State may not perform acts of authority in another State's territory without consent, and the Corfu Channel case holds that respect for territorial sovereignty is an essential foundation of international relations.

2. State the holding in Lotus and the one qualification a modern answer must add.

The Court held that Turkey had not acted contrary to international law in prosecuting the French officer of the watch after a collision on the high seas. International law prohibits a State from exercising its powers in another's territory except under a permissive rule, but does not prohibit its courts from taking cognisance of acts done abroad, so a State need not find permission, only the absence of prohibition; the territorial character of criminal law is not absolute; and because the effects were felt on board the Turkish vessel the jurisdictions were concurrent. The qualification is that article 97 of the Convention on the Law of the Sea has reversed the result for collisions: penal or disciplinary proceedings against the master or another person in the service of the ship may be instituted only before the authorities of the flag State or of the State of that person's nationality.

3. Distinguish subjective from objective territoriality, and give an example of each.

Subjective territoriality gives jurisdiction to the State in whose territory the act began; objective territoriality gives it to the State in which the act was completed or its effects were felt. A man who fires a rifle across a border gives the firing State subjective and the receiving State objective jurisdiction. Lotus is the classic instance of the objective form, the negligence occurring on the French ship and the effects being felt on board the Turkish vessel.

4. On what basis may India prosecute one of its citizens for an offence committed in Dubai?

The nationality or active personality principle. Section 1(5)(a) of the Bharatiya Nyaya Sanhita 2023 applies the Sanhita to any offence committed by any citizen of India in any place without and beyond India, and the illustration to the section is a citizen who commits murder abroad and may be tried in any place in India where he is found. Article 245(2) of the Constitution removes any objection based on extraterritoriality, providing that no law made by Parliament shall be deemed invalid on the ground that it would have extraterritorial operation. India cannot, however, arrest him in Dubai: enforcement is territorial, so it must wait until he is within its reach or seek extradition.

5. What is universal jurisdiction and what is its clearest case?

Jurisdiction over an offence so grave or so hostile to all States that any State may try it regardless of where it was committed, by whom or against whom. Its clearest and oldest case is piracy: article 105 of the Convention on the Law of the Sea provides that on the high seas, or in any place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, arrest the persons and seize the property on board, and that the courts of the seizing State may decide upon the penalties. Modern candidates include war crimes, crimes against humanity, genocide, torture and slavery, and several conventions use the extradite-or-prosecute formula to achieve much of the same effect among their parties.

6. Why is the passive personality principle the most contested basis?

Because it makes the nationality of the victim, rather than the place of the act or the nationality of the actor, the connecting factor, and so exposes a person to the criminal law of every State whose nationals he might encounter, including States whose law he had no reason to consider. It was resisted for most of the twentieth century for that reason. It has gained acceptance in a narrow field, terrorism and offences against internationally protected persons, where treaties require or permit it and where the alternative is that grave offences go unpunished.